Plessy V. Ferguson

In the spring of 1885, Charles Dudley Warner, Mark Twain’s friend, neighbor, and onetime collaborator from Hartford, Connecticut, visited the International Exposition at New Orleans.

In the spring of 1885, Charles Dudley Warner, Mark Twain’s friend, neighbor, and onetime collaborator from Hartford, Connecticut, visited the International Exposition at New Orleans. He was astonished to find that “white and colored people mingled freely, talking and looking at what was of common interest,” that Negroes “took their full share of the parade and the honors,” and that the two races associated “in unconscious equality of privileges.” During his visit he saw “a colored clergyman in his surplice seated in the chancel of the most important white Episcopal church in New Orleans, assisting in the service.”

It was a common occurrence in the i88o’s for foreign travellers and northern visitors to comment, sometimes with distaste and always with surprise, on the freedom of association between white and colored people in the South. Yankees in particular were unprepared for what they found and sometimes estimated that conditions below the Potomac were better than those above. There was discrimination, to be sure, and Negroes were often excluded from first-class public accommodations—as they were in the North. But that was done on the responsibility of private owners or managers and not by requirement of law. According to the Supreme Court’s decision in the Civil Rights Cases of 1883 the federal law gave no protection from such private acts.

Where discrimination existed it was often erratic and inconsistent. On trains the usual practice was to exclude Negroes from first-class or “ladies’ ” cars but to permit them to mix with whites in second-class or “smoking” cars. In the old seaboard states of the South, however, Negroes were as free to ride first class as whites. In no state was segregation on trains complete, and in none was it enforced by law. The age of Jim Crow was still to come.

The first genuine Jim Crow law requiring railroads to carry Negroes in separate cars or behind partitions was adopted by Florida in 1887. Mississippi followed this example in 1888; Texas in 1889; Louisiana in 1890; Alabama, Arkansas, Georgia, and Tennessee in 1891; and Kentucky in 1892. The Carolinas and Virginia did not fall into line until the last three years of the century.

Negroes watched with despair while the legal foundations for the Jim Crow system were laid and the walls of segregation mounted around them. Their disenchantment with the hopes based on the Civil War amendments and the Reconstruction laws was nearly complete by 1890. The American commitment to equality, solemnly attested by three amendments to the Constitution and by elaborate civil rights acts, was virtually repudiated. The “compromise of 1877” between the Hayes Republicans and the southern conservatives had resulted in the withdrawal of federal troops from the South and the formal end of Reconstruction. What had started then as a retreat had within a decade turned into a rout. Northern radicals and liberals had abandoned the cause: the courts had rendered the Constitution helpless; the Republican party had forsaken the cause it had sponsored. A tide of racism was mounting in the country unopposed.

The colored community of New Orleans, with its strong infusion of French and other nationalities, was in a strategic position to furnish leadership for the resistance against segregation. Many of these people had culture, education, and some wealth, as well as a heritage of several generations of freedom. Unlike the great majority of Negroes, they were city people with an established professional class and a high degree of literacy. By ancestry as well as by residence they were associated with Latin cultures at variance with AngloAmerican ideas of race relations. Their forebears had lived under the Code Noir decreed for Louisiana by Louis XIV, and their city faced out upon Latin America.

When the Jim Crow car bill was inirocluced in the Louisiana legislature, New Orleans Negroes organized to fight it. Negroes were still voting in large numbers, and there were sixteen colored senators and representatives in the Louisiana General Assembly. On May 24, 1890, that body received “A Protest of the American Citizens’ Equal Rights Association of Louisiana Against Class Legislation.” An organization of colored people, the association protested that the pending bill was “unconstitutional, unamerican, unjust, dangerous and against sound public policy.” It would, declared the protest, “be a free license to the evilly-disposed that they might with impunity instdt, humiliate, and otherwise maltreat inoffensive persons, and especially women and children who should happen to have a dark skin.”

On July io, 1890, the Assembly passed the bill, the governor signed it, and it became law. Entitled “An Act to promote the comfort of passengers,” the new law required railroads “to provide equal but separate accommodations lor the white and colored races.” Two members of the Equal Rights Association, L. A. Martinet, editor of the New Orleans Crusader , and R. L. Desdunes, placed heavy blame on the sixteen colored members of the Assembly for the passage of the bill. According to Martinet, “they were completely the masters of the situation.” They had but to withhold their support for a bill desired by the powerful Louisiana Lottery Company until the Jim Crow bill was killed. “But in an evil moment,” he added, “our Representatives turned their ears to listen to the golden siren,” and “did so for a ‘consideration.’”

Putting aside recriminations, the Crusader declared: “The Bill is now a law. The next thing is what we are going to do?” The editor spoke testily of boycotting the railroads, but concluded that “the next thing is…to begin to gather funds to test the constitutionality of this law. We’ll make a case, a test case, and bring it before the Federal Courts.” On September i, 1891, a group of eighteen men of color formed a “Citizens’ Committee to Test the Constitutionality of the Separate Car Law.”

Money came in slowly at first, but by October 11, Martinet could write that the committee had already collected $1,500 and that more could be expected “after we have the case well started.” Even before the money was collected, Martinet had opened a correspondence about the case with Albion Winegar Tourgee of May ville, New York, and on October 10 the Citizens’ Committee formally elected Tourgée “leading counsel in the case, from beginning to end, with power to choose associates.”

This action called back into the stream of history a name prominent in the annals of Reconstruction. Albion Tourgée was in 1890 probably the most famous surviving carpetbagger. His fame was due not so much to his achievements as a carpetbagger in North Carolina, significant though they were, as to the six novels about his Reconstruction experiences that he had published since 1879. Born in Ohio, of French Huguenot descent, he had served as an officer in the Union Army, and moved to Greensboro, North Carolina, in 1865 to practice law. He soon became a leader of the Radical Republican party, took a prominent part in writing the Radical Constitution of North Carolina, and served as a judge of the superior court for six years with considerable distinction. He brought to the fight against segregation in Louisiana a combination of zeal and ability that the Citizens’ Committee of New Orleans would have found it hard to duplicate. They had reason to write him, “we know we have a friend in you &: we know your ability is beyond question.” He was informed that the committee’s decision was made “spontaneously, warmly, & gratefully.”

Tourgée’s first suggestion was that the person chosen for defendant in the test case be “nearly white,” but that proposal raised some doubts. “It would be quite difficult,” explained Martinet, “to have a lady too nearly white refused admission to a ‘white’ car.” He pointed out that “people of tolerably fair complexion, even if unmistakably colored, enjoy here a large degree of immunity from the accursed prejudice.…To make this case would require some tact.” He would volunteer himself, “but I am one of those whom a fair complexion favors. I go everywhere, in all public places, thotigh well-known all over the city, & never is anything said to me. On the cars it would be the same thing. In fact, color prejudice, in this respect does not affect me. But, as I have said, we can try it, with another.”

Railroad officials proved surprisingly co-operative. The first one approached, however, confessed that his road “did not enforce the law.” It provided the Jim Crow car and posted the required sign, but told its conductors to molest no one who ignored instructions. Officers of two other roads “said the law was a bad and mean one; they would like to get rid of it,” and asked for time to consult counsel. “They want to help us,” said Martinet, “but dread public opinion.” The extra expense of separate cars was one reason for railroad opposition to the Jim Crow law.

It was finally agreed that a white passenger should object to the presence of a Negro in a “white” coach, that the conductor should direct the colored passenger to go to the Jim Crow car, and that he should refuse to go. “The conductor will be instructed not to use force or molest,” reported Martinet, “& our white passenger will swear out the affidavit. This will give us our habeas corpus case, I hope.” On the appointed day, February 24, 1892, Daniel F. Desdunes, a young colored man, bought a ticket for Mobile, boarded the Louisville & Nashville Railroad, and took a seat in the white coach.

All went according to plan. Desdunes was committed for trial to the Criminal District Court in New Orleans and released on bail. On March 21, James C. Walker, a local attorney associated with Tourgée in the case, filed a plea protesting that his client was not guilty and attacking the constitutionality of the Jim Crow law. He wrote Tourgée that he intended to go to trial as early as he could.

Between the lawyers there was not entire agreement on procedure. Walker favored the plea that the law was void because it attempted to regulate interstate commerce, over which the Supreme Court held that Congress had exclusive jurisdiction. Tourgée was doubtful. “What we want,” he wrote Walker, “is not a verdict of not guilty, nor a defect in this law but a decision whether such a law can be legally enacted and enforced in any state and we should get everything off the track and out of the way for such a decision.” Walker confessed that “it’s hard for me to give up my pet hobby that the law is void as a regulation of interstate commerce,” and Tourgée admitted that he “may have spoken too lightly of the interstate commerce matter.”

The discussion was ended abruptly and the whole approach altered before Desdunes’ case came to trial by a decision of the Louisiana Supreme Court handed down on May 25. In this case, which was of entirely independent origin, the court reversed the ruling of a lower court and upheld the Pullman Company’s plea that the Jim Crow law was unconstitutional in so far as it applied to interstate passengers.

Desdunes was an interstate passenger holding a ticket to Alabama, but the decision was a rather empty victory. The law still applied to intrastate passengers, and since all states adjacent to Louisiana had by this time adopted similar or identical Jim Crow laws, the exemption of interstate passengers was of no great importance to the Negroes of Louisiana, and it left the principle against which they contended unchallenged. On June i, Martinet wired Tourgée on behalf of the committee, saying that “Walker wants new case wholly within state limits,” and asking Tourgée’s opinion. Tourgée wired his agreement.

One week later, on June 7, Homer Adolph Plessy bought a ticket in New Orleans, boarded the East Louisiana Railroad bound for Covington, a destination “wholly within the state limits,” and took a seat in the white coach. Since Plessy later described himself as “seven-eighths Caucasian and one-eighth African blood,” and swore that “the admixture of colored blood is not discernible,” it may be assumed that the railroad had been told of the plan and had agreed toco-operate. When Plessy refused to comply with the conductor’s request that he move to the Jim Crow car, he was arrested by Detective Christopher C. Cain “and quietly accompanied the officer.” The New Orleans Times-Democrat remarked that “It is generally believed that Plessy intends testing the law before the courts.”

In due course Homer Plessy’s case became Plessy v. Fergiison . The latter name belonged to John H. Ferguson, Judge of Section A of the Criminal District Court for the Parish of New Orleans, who overruled the plea of Tourgée and Walker, the defendant’s counsel, that the Jim Crow law was null and void because it was in conflict with the Constitution of the United States. Plessy then applied to the State Supreme Court for a writ of prohibition and certiorari and was given a hearing in November, 1892. The court recognized that neither the interstate commerce clause nor the question of equality of accommodations was involved and held that “the sole question” was whether a law requiring “separate but equal accommodations” violated the Fourteenth Amendment. Citing numerous decisions of lower federal courts to the effect that accommodations did not have to be identical to be equal, the court as expected upheld the law.

“We have been at pains to expound this statute,” added the court, “because the dissatisfaction felt with it by a portion of the people seems to us so unreasonable that we can account for it only on the ground of some misconception.”

Chief Justice Francis Redding Tillou Nicholls, heading the court that handed down this decision in 1892, had signed the Jim Crow act as governor when it was passed in 1890. Previously he had served as the “Redeemer” governor who took over Louisiana from the carpetbaggers in 1877 and inaugurated a brief regime of conservative paternalism. In those days Nicholls had denounced race bigotry, appointed Negroes to office, and attracted many of them to his party.

L. A. Martinet wrote Tourgée that Nicholls in those years had been “fair & just to colored men” and had, in fact, “secured a degree of protection to the colored people not enjoyed under Republican Governors.” But in November, 1892, the wave of Populist rebellion among the white farmers was reaching its crest in the South, and Judge Nicholls’ change of course typified the concessions to racism that conservatives of his class made in their efforts to forestall or divert the rebellion. Nonetheless, at a further hearing Nicholls granted Plessy’s petition for a writ of error that permitted him to seek redress before the Supreme Court of the United States.

The brief that Albion Tourgée submitted to the Supreme Court in behalf of Plessy breathed a spirit of equalitarianism that was more in tune with his carpet-bagger days than with the prevailing spirit of the midnineties.

At the very outset, he advanced an argument in behalf of his client that unconsciously illustrated the paradox that had from the start haunted the American attempt to reconcile strong color prejudice with deep equalitarian commitments.

Plessy, he contended, had been deprived of property without due process of law. The “property” in question was the “reputation of being white.” It was “the most valuable sort of property, being the master-key that unlocks the golden door of opportunity.” Intense race prejudice excluded any man suspected of having Negro blood “from the friendship and companionship of the white man,” and therefore from the avenues to wealth, prestige, and opportunity. “Probably most white persons if given the choice,” he held, “would prefer death to life in the United States as colored persons .”

Since Tourgée had proposed that a person who was “nearly white” be selected for the test case, it may be presumed that he did so with this argument in mind. But this was not a defense of the colored man against discrimination by whites, but a defense of the “nearly” white man against the penalties of color. The argument, whatever its merits, apparently did not impress the Court.

Tourgée went on to develop more relevant points. He emphasized especially the incompatibility of the segregation law with the spirit and intent of the Thirteenth and particularly the Fourteenth amendments. Segregation perpetuated distinctions “of a servile character, coincident with the institution of slavery.” He held that “slavery was a caste, a legal condition of subjection to the dominant class, a bondage quite separable from the incident of ownership.” He scorned the pretense of impartiality and equal protection advanced in the defense of the “separate but equal” doctrine.

“The object of such a law,” he declared, “is simply to debase and distinguish against the inferior race. Its purpose has been properly interpreted by the general designation of ‘Jim Crow Car’ law. Its object is to separate the Negroes from the whites in public conveyances for the gratification and recognition of the sentiment of white superiority and white supremacy of right and power.” He asked the members of the Court to imagine the tables turned and themselves ordered into a Jim Crow car. “What humiliation, what rage would then fill the judicial mind!” he exclaimed.

The clue to the true intent of the Louisiana statute was that it did not apply “to nurses attending the children of the other race.” On this clause Tourgée shrewdly observed:

The exemption of nurses shows that the real evil lies not in the color of the skin but in the relation the colored person sustains to the white. If he is a dependent it may be endured: if he is not, his presence is insufferable. Instead of being intended to promote the general comfort and moral well-being, this act is plainly and evidently intended to promote the happiness of one class by asserting its supremacy and the inferiority of another class. Justice is pictured blind and her daughter, the Law, ought at least to be color-blind.

Tourgée then asked the Court to look to the future. Should the separate-car law be upheld, he inquired, “what is to prevent the application of the same principle to other relations?” Was there any limit to such laws? “Why not require all colored people to walk on one side of the street and whites on the other?…One side of the street may be just as good as the other.…The question is not as to the equality of the privileges enjoyed, but the right of the State to label one citizen as white and another as colored in the common enjoyment of a public highway.”

The Supreme Court did not get around to handing down a decision on Plessy v. Ferguson until 1896. In the years that intervened between the passage of the Louisiana segregation law in July, 1890, and the time of the eventual decision on its constitutionality in 1896, the retreat from the commitment to equality had quickened its pace in the South and met with additional acquiescence, encouragement, and approval in the North. Two states had already disfranchised the Negro, and several others, including Louisiana, were planning to take the same course. In 1892 Congress defeated the Lodge Bill, designed to extend federal protection to elections, and in 1894 it wiped from the federal statute books a mass of Reconstruction laws for the protection of equal rights. And then, on September 18, 1895, Booker T. Washington delivered a famous speech embodying the so-called “Atlanta Compromise,” which was widely interpreted as an acceptance of subordinate status for the Negro by the foremost leader of the race.

On May 18, 1896, Justice Henry Billings Brown, a resident of Michigan but a native of Massachusetts, delivered the opinion of the Court in the case of Plessy v. Ferguson . His views upholding the defendant’s case —that the “separate but equal” doctrine was constitutional—were in accord with those of all his brothers, with the possible exception of Justice David Josiah Brewer, who did not participate, and the certain exception of Justice John Marshall Harlan, who vigorously dissented in phrases that often echoed Tourgee’s arguments. In approving, to all intents and purposes, the principle of segregation, Justice Brown followed not only the trend of the times, but a host of state judicial precedents, which he cited at length. That there were no federal judicial precedents to the contrary only added to the technical strength of his position. Just as telling, perhaps, was Brown’s mention of the action of Congress in establishing segregated schools for the District of Columbia, an action endorsed by Radical Republicans who had supported the Fourteenth Amendment, and sustained in regular congressional appropriations ever since.

Similar laws, wrote Brown, were adopted by “the legislatures of many states, and have been generally, if not uniformly, sustained by the courts.” The validity of such segregation laws, he maintained, depended on their “reasonableness.” And in determining reasonableness, the legislature “is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”

In addition to judicial precedent and accepted practice, Justice Brown ventured into the more uncertain fields of sociology and psychology for support of his opinion. He wrote:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.…The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured by the negro except by an enforced commingling of the two races. We cannot accept this proposition.…Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.

One of the most fascinating paradoxes in American jurisprudence is that the opinion of a native son of Massachusetts, Brown, should have bridged the gap between the radical equalitarian commitment of 1868 and the reactionary repudiation of that commitment in 1896; and that Harlan, a southerner, should have bridged the greater gap between the repudiation of 1896 and the radical rededication to the equalitarian idealism of 1868 in 1954. For the dissenting opinion of Justice Harlan, embodying many of the arguments of Plessy’s ex-carpetbagger counsel, foreshadowed the Court’s eventual repudiation of the Plessy v. Ferguson decision and the doctrine of “separate but equal” more than half a century later—a repudiation in which, fit- tingly enough, Harlan’s grandson and namesake on the Warren Court wholly concurred.

The elder John Marshall Harlan is correctly described by Robert Cushman as “a Southern gentleman and a slave-holder, and at heart a conservative.” A Kentuckian of the Whig persuasion, Harlan had opposed secession and fought in the Union Army, but at the same time he opposed both the emancipation of the slaves and the passage of civil rights laws to protect the rights of the freedmen. Shocked by Ku Klux excesses, he experienced a sudden conversion, renounced his former views, became a Republican in 1868, and was appointed to the Supreme Court by President Hayes in 1877.

After his conversion Harlan became one of the most outspoken champions of Negro rights of his time, and during his thirty-four years on the bench he lifted his voice repeatedly against denial of those rights by the dominant opinion of the Court. His famous dissent in the Civil Rights Cases of 1883 had denounced the “subtle and ingenious verbal criticism” by which “the substance and spirit of the recent amendments of the Constitution have been sacrificed.” And in 1896 he was ready to strike another blow for his adopted cause.

Harlan held the Louisiana segregation law in clear conflict with both the Thirteenth and the Fourteenth amendments. The former “not only struck down the institution of slavery,” but also “any burdens or disabilities that constitute badges of slavery or servitude,” and segregation was just such a burden or badge. Moreover, the Fourteenth Amendment “added greatly to the dignity and glory of American citizenship, and to the security of personal liberty,” and segregation denied to Negroes the equal protection of both dignity and liberty. “The arbitrary separation of citizens, on the basis of race, while they are on a public highway,” he said, “is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution. It cannot be justified upon any legal grounds.”

Harlan was as scornful as Tourgée had been of the claim that the separate-car law did not discriminate against the Negro. “Every one knows,” he declared, that its purpose was “to exclude colored people from coaches occupied by or assigned to white persons.” This was simply a poorly disguised means of asserting the supremacy of one class of citizens over another. The Justice continued:

But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings, or of his color when his civil rights as guarantied by the supreme law of the land are involved.…We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens,—our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

“The present decision, it may well be apprehended,” predicted Harlan, “will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the constitution.…” For if the state may so regulate the railroads, “why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other,” or, for that matter, apply the same regulations to streetcars and other vehicles, or to courtroom, the jury box, the legislative hall, or to any other place of public assembly?

“In my opinion,” the Kentuckian concluded, “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.”

But Harlan was without allies on the Court, and the country as a whole received the news of its momentous decision upholding the “separate but equal” doctrine in relative silence and apparent indifference. Thirteen years earlier the Civil Rights Cases had precipitated pages of news reports, hundreds of editorials, indignant rallies, congressional bills, a Senate report, and much general debate. In striking contrast, the Plessy decision was accorded only short, inconspicuous news reports and virtually no editorial comment outside the Negro press. A great change had taken place, and the Court evidently now gave voice to the dominant mood of the country. Justice Harlan had spoken for the forgotten convictions of a bygone era.

The racial aggressions he foresaw came in a flood after the decision of 1896. Even Harlan indicated by his opinion of 1899 in Cummings v. Board of Education that he saw nothing unconstitutional in segregated public schools. Virginia was the last state in the South to adopt the separate-car law, and she resisted it only until 1900. Up to that year this was the only law of the type adopted by a majority of the southern states. But on January 12, 1900, the editor of the Richmond Times was in full accord with the new spirit when he asserted: “It is necessary that this principle be applied in every relation of Southern life. God Almighty drew the color line and it cannot be obliterated. The negro must stay on his side of the line and the white man must stay on his side, and the sooner both races recognize this fact and accept it, the better it will be for both.”

With a thoroughness approaching the incredible, the color line was drawn and the Jim Crow principle was applied even in those areas that Tourgée and Harlan had suggested a few years before as absurd extremes. In sustaining all these new laws, courts universally and confidently cited Plessy v. Ferguson as their authority. They continued to do so for more than half a century.

On April 4, 1950, Justice Robert H. Jackson wrote old friends in Jamestown, New York, of his surprise in running across the name of Albion W. Tourgée, once a resident of the nearby village of Mayville, in connection with segregation decisions then pending before the Supreme Court. “The Plessy case arose in Louisiana,” he wrote, “and how Tourgée got into it I have not learned. In any event, I have gone to his old brief, filed here, and there is no argument made today that he would not make to the Court. He says, ‘Justice is pictured blind and her daughter, the Law, ought at least to be color-blind.’ Whether this was original with him, it has been gotten off a number of times since as original wit. Tourgée’s brief was filed April 6, 1896 and now, just fifty-four years after, the question is again being argued whether his position will be adopted and what was a defeat for him in ’96 be a postmortem victory.”

Plessy v. Ferguson remained the law of the land for fifty-eight years lacking one day, from May 18, 1896, to May 17, 1954, when the Supreme Court at last renounced it in the school segregation cases of Brown et al. v. Board of Education of Topeka , et al. In that decision could indeed be found, at long last, a vindication, “a post-mortem victory”—not only for the excarpetbagger Tourgée, but for the ex-slaveholder Harlan as well.